Citation NR: 9624013
Decision Date: 08/30/96 Archive Date: 09/04/96
DOCKET NO. 94-35 529 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Portland, Oregon
THE ISSUE
Entitlement to waiver of recovery of an overpayment of
pension benefits, in the calculated amount of $26,326.00.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Heather J. Harter, Associate Counsel
REMAND
The veteran had active duty from February 1945 to January
1946.
On the substantive appeal received by the VA in September
1994, the appellant requested the opportunity to present
testimony at a local VA office before a traveling member of
the Board of Veterans’ Appeals (Board). Such a hearing has
not been scheduled or held. Under governing law and
regulation, the appellant is entitled to a hearing on appeal
prior to a final decision on her claim. 38 U.S.C.A. § 7104
(West 1991); 38 C.F.R. § 20.700 (1995).
To ensure that the VA has met its duty to assist the claimant
in developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following action:
The RO should schedule a hearing before a
traveling member of the Board.
Thereafter, the case should be returned to the Board. The
Board intimates no opinion as to the ultimate outcome of this
case. The appellant need take no action until otherwise
notified.
GEORGE R. SENYK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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